Eight and on Trial: Young Defendants
Throw Criminal Justice Into Confusion

By

Dionne Searcey

Updated Dec. 11, 2008 12:01 a.m. ET

In his videotaped confession to the police, the eight-year-old boy sits in an overstuffed office chair and calmly describes how he shot his father and his father's roommate to death with a rifle. At one point, he buries his head in his jacket and says, "I'm going to go to juvie."

Prosecutors in Arizona, who could have sought to charge the boy as an adult, have charged him in juvenile court with the murder of his father, Vincent Romero, 29, and Timothy Romans, 39. He could face a trial or plea hearing and end up in a locked facility, designed mainly for teenagers, conceivably until he is 18.

The case highlights an old but persistent quandary of the criminal justice system. Despite society's natural impulse to secure justice for the victims of heinous crimes, most experts agree the adult system is no place for very young children. But some question whether they should face charges in the juvenile system itself, meant for older children.

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"When we made so-called murder policy, nobody had an eight-year-old in mind," says Franklin Zimring, a professor at the University of California at Berkeley School of Law.

A peak in juvenile crime in the early 1990s, followed by a wave of school shootings, helped drive support for a crackdown. For example, in the mid-1990s, after two boys in Chicago dropped five-year-old Eric Morse to his death from an apartment window, Wisconsin lowered the age limit for trial as adults to 10 from 12. The boys who dropped Eric, then 10 and 11, were given the maximum five-year sentence in juvenile court.

State law is all over the map and policymakers are still struggling with the issue. Only 16 states define an age at which a child is capable of forming criminal intent, according to 2007 figures from the National Center for Juvenile Justice. In North Carolina, the minimum age is six. Most of the other 34 states leave it up to prosecutors.

The juvenile justice system stresses rehabilitation and social services. Young defendants whom prosecutors decline to charge can benefit from a judge tracking their progress. "If we look at the foundation of the court, it's not designed to punish but to help," says Alida Merlo, professor of criminology at the Indiana University of Pennsylvania.

Prosecutors, many of whom are elected, also have to weigh the needs of the child with the demands of the citizens they represent. "It is not the state's desire to persecute this juvenile," Arizona prosecutors handling the case of the eight-year-old said in a court filing. "Rather, it is the desire and intent to find a balance between the purpose of the juvenile justice system -- to rehabilitate juveniles -- and bring a sense of justice to the victims and the public."

Some criminal experts believe that because some laws are soft on children, drug dealers and gang members may be encouraged to recruit more "shorties," or youngsters who commit crimes on their behalf, says Linda Szymanski, chief of legal research for the National Center for Juvenile Justice. Ms. Szymanski adds that "from a victim's standpoint, you're just as dead."

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A peak in juvenile crime in the early 1990s, followed by a wave of school shootings, helped drive support for a crackdown.
Getty Images

Other juvenile justice experts say it's impossible for pre-teens as young as eight to meaningfully assist in their own defense, which is the standard for being deemed competent to stand trial. Such young children can't understand the charges against them or make strategic decisions about pleading guilty or testifying, those experts say.

Behavioral research raises questions as to whether children in their early-to-mid-teens can even form criminal intent, a key component of a murder charge. The justice system too often focuses on whether children know right from wrong, rather than whether they can control their behavior, says Laurence Steinberg, professor of psychology at Temple University and co-author of "Reinventing Juvenile Justice."

"What really is the point" of charging an eight-year-old, he says. "The prosecutor is trying to send a message to second-graders all over?"

Arthur Busch was a prosecutor in Flint, Mich., when a six-year-old boy killed a fellow first-grader in a schoolhouse shooting. Mr. Busch decided not to try to charge the boy, who had found the gun in a flophouse where his mother had dropped him off with an uncle, and instead sent him to a foster home.

"He believed in Santa Claus, the tooth fairy and spent his time watching cartoons and coloring in books," Mr. Busch said. Rather than pursue the shooter, Mr. Busch went after the adult who owned the weapon, charging him with involuntary manslaughter.

"Too often, we get prosecutors that think they're going to get their 15 minutes of fame by making some kind of zany decision they feel panders to the anger in the public," says Mr. Busch, now a defense attorney. "It takes a lot more courage not to prosecute someone."

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